Defendant/third-party plaintiff Time Warner Cable New York City, LLC ("Time Warner") moves for summary judgment dismissing plaintiff's claims under Labor Law 200, 240(1), and 241(6), and for summary judgment on its third-party claim for contractual indemnification asserted against third-party defendant Uptown Communications & Electric, Inc. ("Uptown") (motion seq. 004). Plaintiff opposes only dismissal of his Labor Law 240(1) claim.

Plaintiff moves for partial summary judgment as to liability on his Labor Law 240(1) claim against Time Warner (motion seq. 005). Time Warner opposes.

Uptown filed opposition to both motions after their submission date, without leave of Court. Thus, the Court will not consider Uptown's untimely papers (see NYSCEF Docs. 152-153).

On February 2, 2017, plaintiff, a cable technician employed by Uptown, was injured while working on a ladder in front 228-43 Mentone Avenue, Queens, New York. At the time of the accident, plaintiff set up a new, 28-foot extension ladder on the sidewalk in front of the premises, to run a cable wire from the utility pole to a customer's house. The sidewalk where plaintiff placed the ladder was damaged and uneven, about 2-3 feet away from the curb. As plaintiff was climbing the ladder, it shifted, causing him to jump from the ladder and sustain injuries. In addition to the ladder in question, plaintiff had in his truck a 6-foot A-frame ladder and a 14-foot straight ladder.

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiff does not oppose dismissal of his claims under Labor Law §§ 200 and 241(6) and for common law negligence, which are therefore dismissed as abandoned (see Gamez v Sandy Clarkson LLC, 221 AD3d 453, 454-455 [1st Dept 2023]; Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572, 573 [1st Dept 2020]; Saidin v Negron, 136 AD3d 458, 459 [1st Dept 2016], lv dismissed 28 NY3d 1069 [2016], cert denied 583 US 842 [2017]).

Also dismissed are plaintiff's claims asserted against defendants German and Luisa Granados, since those defendants did not answer or otherwise appear, and plaintiff failed to move for default judgment within one year (Deutsche Bank National Trust Co. v Cruz, 173 AD3d 610 [1st Dept 2019]; CPLR 3215[c]).

Labor Law § 240(1) provides in relevant part that where a building is being altered, contractors, owners, and their agents "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." "The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). "[W]here an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (id. [internal quotation marks omitted]). "Thus, in order to recover under section 240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury" (id.). Labor Law § 240(1) is to be liberally construed so as to accomplish its legislative purpose of protecting workers (Stoneham v Joseph Barsuk, Inc., 41 NY3d 217, 221 [2023]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (id., citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Owner, General Contractor, or Agent

Time Warner argues that is not an owner, general contractor, or agent of the owner under the Labor Law. Plaintiff contends that Time Warner is the "owner" due to its ownership of a cable wire near the premises, and alternatively contends that Time Warner was the general contractor for the work.

An entity that contracted for and benefitted from the work is not an "owner" for purposes of Labor Law liability if it does not have a relationship to the property on which the work was being performed (see Scaparo v Ilion, 13 NY3d 864, 866 [2009]; Coon v WFP Tower B Co. L.P., 220 AD3d 407, 408 [1st Dept 2023]; Winkler v Halmar International, LLC, 199 AD3d 598, 598 [1st Dept 2021]). Here, plaintiff was standing on a ladder on a sidewalk, adjacent to a single-family home. He does not contend that Time Warner owned the sidewalk or the home, only that Time Warner is an "owner" due to its ownership of the cable system; but the record is not even clear if plaintiff hooked the ladder on cables belonging to Time Warner or Verizon. Thus, in this scenario, Time Warner is not an "owner" under the Labor Law.

"General contractor" is not defined in Labor Law §§ 200, 240 or 241. However, it is understood that a general contractor is generally responsible for the supervision and control of the work (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Bjelicic v Lynned Realty Corp., 152 AD2d 151, 153 [1st Dept 1989], app dismissed 75 NY2d 947 [1990]), whether or not such control is actually exercised (Butt v Bovis Lend Lease LMB, Inc., 47 AD3d [*2]338, 341 [1st Dept 2007]). Moreover, it is established that "[a] party which has the authority to enforce safety standards and choose responsible subcontractors is considered a contractor under Labor Law § 240(1)" (Guanopatin v Flushing Acquisition Holdings, LLC, 127 AD3d 812, 813-814 [1st Dept 2015] [citations omitted]).

Here, Time Warner hired the subcontractor, Uptown, and had the ability to stop work (Ganley EBT Tr. at 58-59 [NYCEF Doc. 125]). Accordingly, Time Warner was the general contractor (see supra) or the agent of the owner under the Labor Law (see Douglas v Tishman Constr. Corp., 205 AD3d 570, 571 [1st Dept 2022]).

Sole Proximate Cause

Time Warner contends that plaintiff was the sole proximate cause of the accident. "To raise a triable issue of fact as to whether plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained" (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-403 [1st Dept 2013]). Time Warner fails to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident, because they do not present evidence that the appropriate equipment was available to plaintiff and that he chose not to use it (Sacko v New York Hous. Auth., 188 AD3d 546, 547 [1st Dept 2020]; Pierrakeas v 137 E. 38th St. LLC, 177 AD3d 574, 574-575 [1st Dept 2019]). It is undisputed that no safety devices were provided to prevent the ladder from shifting or toppling over while in use (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d at 403 ["failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law § 240(1)"]). Whether the ladder was in good working order is legally unavailing on summary judgment, because plaintiff established that the ladder did not offer adequate protection from falls, and he was not required to prove its defectiveness in order to satisfy his prima facie burden (Ping Lin v 100 Wall St. Prop. LLC, 193 AD3d 650, 651 [1st Dept 2021]; Rodriguez v BSREP UA Heritage LLC, 181 AD3d 537, 538 [1st Dept 2020]; Fletcher v Brookfield Props., 145 AD3d 434 [1st Dept 2016]). Moreover, plaintiff did not intentionally jump from the ladder and only did so after it shifted (cf. Montgomery v Fed. Express Corp., 4 NY3d 805, 806 [2005]). Finally, the Court is unpersuaded that plaintiff provided inconsistent statements about the circumstances of the accident (Ping Lin v 100 Wall St. Prop. LLC, 193 AD3d at 652).

Accordingly, plaintiff's motion for partial summary judgment as to liability on his Labor Law 240 (1) claim against Time Warner is granted, and Time Warner's motion to dismiss that claim is denied.

"A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987] [citation omitted]). "The right to contractual indemnification depends upon the specific language of the contract" (DiBrino v Rockefeller Ctr. N., Inc., 230 AD3d 127, 136 [1st Dept 2024] [citation omitted]). "Indemnification provisions are strictly construed and a promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (Madison Hospitality Mgt. LLC v Acacia Network Hous., Inc., 230 AD3d 1063 [1st Dept 2024] [internal [*3]quotation marks and citation omitted]).

Time Warner contends that it is entitled to contractual indemnification on the basis of its master contract with Uptown (Field Installation Services Agreement ¶ 10 [NYSCEF Doc. 115]; Ganley Tr. at 24:6-25:3; 99:8-101:8 [NYSCEF Doc. 114]). Paragraph 10 of the contract provides as relevant that:

"Contractor shall indemnify and hold harmless, and at TWC's election defend, TWC and its parent company(ies), affiliates and subsidiaries, and their respective predecessors and successors, and each of its and their partners, officers, shareholders, directors, employees and agents, from and against any and all claims, judgments, liabilities, damages, expenses, fines, losses, demands, actions, lawsuits, executions and costs (including but not limited to attorneys' fees and court costs) arising out of or in connection with any of the following: (i) the performance of the Services by Contractor or any Contractor Representative; (ii) any breach of this Agreement by Contractor or any Contractor Representative; (iii) the negligence or other wrongdoing on the part of Contractor or any Contractor Representative; (iv) allegations involving Contractor or any Contractor Representative's failure to comply with applicable law or regulation; or (v) the conduct of Contractor's business [id.].

General Obligations Law § 5—322.1 (1) applies to contracts "relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances" (Malerba v New York City Tr. Auth., 236 AD3d 596, 598 [1st Dept 2025]). However, General Obligations Law § 5—322.1 does not bar enforcement of the clause here, as there is no evidence of negligence by Time Warner, and plaintiff's Labor Law § 200 and common-law negligence claims against Time Warner have been dismissed (Hasan v Macerich Co., 239 AD3d 568, 570 [1st Dept 2025]; Dwyer v Cent. Park Studios, Inc., 98 AD3d 882, 884 [1st Dept 2012]). Further, the contract's broad indemnification provision was triggered by plaintiff's accident in the course of Uptown's work (Asian v Flintlock Constr. Servs., LLC, 225 AD3d 462, 463 [1st Dept 2024]). Therefore, Time Warner's motion for summary judgment on its contractual indemnification claim against Uptown is granted.

Accordingly, it is

ORDERED that plaintiff's motion for partial summary judgment as to liability on his Labor Law 240(1) claim against Time Warner is GRANTED (motion seq. 005); and it is further

ORDERED that the motion by defendant/third-party plaintiff Time Warner Cable New York City, LLC for summary judgment is GRANTED IN PART only to the extent that (a) plaintiff's claims under Labor Law 200 and 241(6) and for common law negligence are DISMISSED as abandoned; (b) summary judgment is GRANTED for Time Warner on its third-party contractual indemnification claim asserted against third-party defendant Uptown Communications & Electric, Inc.; and (c) the motion is otherwise DENIED (motion seq. 004); and it is further

ORDERED that plaintiff's claims asserted against non-appearing defendants German Granados and Luisa Granados are DISMISSED pursuant to CPLR 3215 (c); and it is further

ORDERED that the parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.